Can the Police Swipe or Scan Your Credit Card?

Does an officer need to get a warrant before swiping?

The back of
a credit card typically has a magnetic strip that holds information that’s
visible on the front of the card, like name, account number, and expiration
date. A swipe of the card reveals that data. (It can also disclose other information
stored on the card, like a frequent flier number.)

Officers
often consider possession of a bunch of cards—particularly when accompanied by
something like an encoding device—as an indication of identity theft. In order
to determine whether the cards are legit, they typically have to swipe them.

Is a Swipe a Search?

Suppose an
officer comes by a credit, debit, or gift card honestly—maybe a suspect has consented to a wallet
search. Does the officer need some kind of legal justification to scan the
card? In other words, is a credit card scan a “search” within the meaning of
the Fourth Amendment?

As of 2016,
several courts seemed to be of the view that a credit card swipe is not a Fourth Amendment search.
These courts have held that an officer doesn’t need a warrant or an exception to the warrant requirement
in order to scan cards.

No Fourth Amendment
Protection

In a 2016 federal
case, an officer had pulled over a driver for tailgating. The officer reported
smelling marijuana when approaching the vehicle. The officer had his dog sniff the car, and
the canine alerted to drugs. After a skirmish between officer and motorist, the
police searched the car. (United States
v. DE L'Isle, No. 15-1316 (8th Cir. 2016).)

The
searching officers didn’t find any drugs, but they did find a duffle bag
holding a big stack of credit, debit, and gift cards. They arrested the driver
for assault and resisting arrest. The cards went to U.S. Secret Service agents,
who scanned them. The scans revealed that the magnetic strips on the back of
the cards had either no account information or stolen information.

The federal
government charged the driver with possession of counterfeit and unauthorized
access devices. The key legal question was whether the Secret Service agents were
allowed to scan the cards.

In concluding
that the card-scanning didn’t violate the Fourth Amendment, the federal appeals
court said that Secret Service didn’t commit a privacy trespass: “‘[S]liding
a card through a scanner to read virtual data does not involve physically
invading a person’s’ space or property.” The court also said that the defendant
didn’t have a reasonable expectation of privacy in the cards. It pointed out that,
to use a credit card, one must transfer the card’s information to a seller. In
other words, the holder of a card freely discloses the information on it, which
means that the information isn’t constitutionally protected.

Rules May Vary

The court
considering the case above allowed for the possibility that someone could have
a legitimate privacy interest in information that’s in a card’s magnetic strip.
But it found no such interest where all the information in the magnetic strip
should have matched the information easily visible on the front of the
card.

The
decision doesn’t, however, mean that an officer can grab your credit card from
you without any kind of reason and swipe it. Critical to the opinion was the
fact that law enforcement “lawfully possessed” the cards before checking them.

Plus, the
decision of that one court doesn’t control the decisions of all others. A state
court, for example, could rule that the state constitution prohibits
warrantless police credit card swipes. (See our note on jurisdictional differences
in law.)